Barnett v. First National Bank , 148 Iowa 667 ( 1910 )

Deemer, C. J.

Plaintiff claims to have left certain notes for safe-keeping with, the First National Bank of Chariton, the business being done by one Crocker, the cashier; that the bank failed, and her notes have never been returned to her, although demand has been made therefor.' Defendant denies the deposit of the notes, says the transaction, if there was one, was between plaintiff' and Crocker individually, and further pleads an estoppel, which plea will hereafter be noticed.

i Evidence-w?thsaatl0ns decedent. I. Save for a ruling on evidence, the questions presented by this appeal are purely of fact. The ruling complained of is the action of the trial court in permitting plaintiff to testify to transactions with the cashier of the bank, one F. B. Crocker, who a£ the time of trial was deceased. The so-called “dead man’s statute” does not apply to one who was a mere agent of the real party in interest. This has been held in many cases, and nowhere more squarely than in Reynolds v. Iowa & Neb. Co., 80 Iowa, 563; Bellows v. Litchfield, 83 Iowa, 36; Salyers v. Monroe, 104 Iowa, 75; French v. French, 84 Iowa, 658. The evidence clearly shows that plaintiff dealt with Crocker as cashier of the bank, and he, Crocker, was not jointly liable with his bank, as defendant contends. The testimony was properly received.

2. Banks and banking: action for the value of property left for safe keeping: evidence. II. While the testimony is not as convicing as it might be, due to plaintiff’s age and her manner of doing business, we think it sufficient to sustain the action of the trial court in allowing plaintiff’s claim. We shall not set it out. The most significant thing in the whole case is a piece of paper in Crocker’s own handwriting given to plaintiff at the time she made the last deposit of notes and received some cash from Crocker for her personal needs. This piece of paper shows that at the time it was given plaintiff had in the bank in cash and notes $2,176.42. This paper, although not signed by Crockér, was shown to be in his handwriting, and it was admissible in evidence as an admission, if not a formal receipt.

III. It is claimed by defendant that plaintiff received back her notes from the receiver of the bank. This is an affirmative defense not sustained by the record, and the trial court was right in ignoring it.

3. Same: estoppel. IV. The plea of estoppel is based upon a claim made by plaintiff before this action was commenced to the receiver of the bank and the comptroller of the currency to the effect that Crocker was acting for her individually, and not as agent for his bank. Responding to this claim, the comptroller advised plaintiff that she was not entitled to file her claim against the bank. This is all there is to the plea of estoppel, and it is apparent that many of the essential elements of an estoppel are wanting’. There is no testimony that the receiver changed his course or did anything in reliance upon plaintiff’s statements. Indeed, the record leaves us in douht as to whether or not any such statements were made.

4. dence'Vsufficiency. V. Lastly, it is argued that the testimony shows a gratuitous bailment, and that no negligence on the part of the bank or its cashier is shown. We do not find it necessary to determine this question. Plaintiff showed the deposit of the notes and money, ■ u and the failure of the bank, its cashier or receiver, to return them. This made a prima facie case, and- defendants were liable in the absence of a further-showing of loss through no negligence of the bailees. It is immaterial under such circumstances whether the degree of care be high, ordinary, or slight. Enough was shown to make out a prima facie case of conversion, and this is all the case required.

The judgment is right, and it is affirmed.